Citation Nr: 1237779 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 10-05 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from January 1962 to January 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In February 2011, the Veteran testified before the undersigned during a video conference Board hearing held at the RO. A corrected transcript of the hearing is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant, if further action is required. REMAND VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2011). Specifically, VA is required to make reasonable efforts to obtain relevant records, including private records, that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C.A. § 5103A(b). If after making such reasonable efforts VA is unable to obtain all of the relevant records sought, VA must so notify the claimant. Id. Such notice must identify the records not obtained, explain the efforts made to obtain them, and describe any further action VA will take on the claim. Id. VA regulation clarifies that "reasonable efforts" to obtain private medical records will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1) (2012). At the time of his February 2011 video conference Board hearing, the Veteran's representative completed and signed eight VA Form 21-4142s (Authorization and Consent to Release Information to the Department of Veterans Affairs). These requests identified six private providers who treated the Veteran from discharge in January 1965 until December 1986: Dr. Battle in Johnson City, TN; Dr. A. McCartt in Johnson City, TN; Dr. R. Hunter in Kingsport, TN; Dr. Howell and Dr. Harris who practiced in an office in Johnson City, TN; Dr. W. Cloud in Knoxville, TN; and Dr. T. Green and Dr. J. Green in Bristol, TN. None of these records are currently on file. Moreover, if these records demonstrate a continuity of symptomatology (hearing loss) since service or addressed the etiology of the Veteran's current hearing loss disability, such would be highly probative. Each submitted VA Form 21-4142 identified the provider, was duly signed and dated by the representative, and included instructions to rush those records to the undersigned. However, the Board is forbidden to do any development on its own initiative and must remand these requests for needed medical records to the AMC for appropriate development. See Disabled American Veterans (DAV) v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The Board also notes that these releases were signed more than 180 days ago and are no longer valid. An authorization to release records to VA is effective only for 180 days from the date of signature. See VA Form 21-4142, Section III, Part 9B. This period has been exceeded with respect to these authorizations. The Veteran thus must authorize the release of his records anew before VA will attempt to obtain these records. Therefore, on remand the RO/AMC must ask the Veteran and his representative to resubmit and resign the authorizations for the private providers. After obtaining proper authorization, the AMC shall obtain and associate with the claims file all outstanding private treatment records from Drs. Battle, McCartt, Hunter, Howell and Harris, Cloud, and T. Green and J. Green. The Veteran also submitted two forms to obtain VA treatment records dated from 2000 to the present from both the Nashville VAMC and the Johnson City VAMC. The Board notes that while no VAMC is presently located in Johnson City a Vet Center is, so on remand the RO/AMC will need to clarify with the Veteran and his representative which VA facilities may have records pertinent to his two claims presently on appeal. In any event, as for any outstanding VA treatment records, the RO/AMC shall request that the Nashville VAMC, and any other VA facility identified by the Veteran, provide VA treatment records related to his hearing claims for the time period from January 2000 to the present. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative and clarify the need for him to complete and sign the necessary authorization (VA Form 21-4142) for VA to obtain the medical treatment records from those physicians identified by his representative, namely Drs. Battle, McCarty, Hunter, Howell and Harris, Cloud, and T. Green and J. Green. The RO/AMC should explain that his previously executed releases are no longer valid. Ask the Veteran to assist in obtaining these records by providing the relevant dates of treatment, names of the treating physicians, phone numbers and addresses; or by himself providing these treatment records if, for example, he has them in his personal possession. If he provides a completed release form authorizing VA to obtain these confidential treatment records, then attempt to obtain them with at least one follow-up request if no reply is received. See 38 C.F.R. § 3.159(c)(1) (2012). The Veteran should also be asked to identify all VA and non-VA health care providers that have treated him for his hearing loss since service. Any negative development should be noted in the claims file. The Veteran should also be apprised of any negative development. 2. Regardless as to whether or not the Veteran responds, acquire any treatment records that may be available from the VA Medical Center in Nashville, Tennessee, since January 2000, and from any other VA facility identified by the Veteran. 3. Then readjudicate the claims in light of any additional evidence. If these claims are not granted to the Veteran's satisfaction, send him a Supplemental SOC (SSOC) and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of these claims. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).